Sunday, January 12, 2014

Drillers and Frackers Contorting in the Wake of PA Supreme Court Ruling

It’s funny to watch the frackers and drillers contorting themselves to call for environmental opposition to the Pennsylvania Supreme Court decision that struck down as unconstitutional many aspects of the pro-drilling legislation known as Act 13. 

After crafting and passing (through their legislative marionettes) a piece of legislation so overwhelmingly favorable to the drilling industry at the expense of community and environmental protection the drillers and frackers are now claiming that the decision, which struck down many elements of this law, is environmentally bad.

The most recent assertion is that because the state Supreme Court struck section 3215(b) of the law, the provision that talked about buffers, the decision weakened environmental protection for waterways.

What a farce!

First it is important to know that section 3215(b) included among its provisions a mandatory waiver provision – a requirement that DEP waive the minimal buffer requirements included in the law when asked by the industry.  And that if in its wisdom (which right now is questionable at best) DEP told the driller/fracker that they had to take extra measures to protect streams as a result of the buffer waiver, the driller had the right take that request to court and it was incumbent on the DEP to defend the need for additional measures rather than being the responsibility of the driller to prove it was not needed.  And if DEP requested no additional measures, or ones that were clearly too weak, municipalities had no right similar to the drillers/frackers to challenge the decision in court. 

It is equally important to know that the buffer provisions in section 3215 were woefully weak.  Shale gas development is a highly industrial process bringing with it huge disturbance to the landscape, toxic chemicals and waste stored and used on site (including in open pits), miles of drilling resulting in an abundance of contaminated drilling muds, and a whole host of other industrial operations – the buffer provisions of section 3215 were not crafted upon good science to protect healthy streams, they were crafted so as to give the drillers the right to drill too close to our precious waterways and to prevent either a future DEP (one truly interested in environmental protection) or concerned communities from mandating bigger buffer requirements.

The removal of section 3215(b) of the bad law simply reinstated previous legal authorities already held by the DEP and municipalities to protect streams, including with buffers. 
ü  It restored the rights of communities to, through zoning, instill greater buffer protections in order to protect community waterways. 
ü  It restored the 150 foot buffer requirement the state already has in place for exceptional value and high quality streams (150 feet, while not an adequate buffer to protect our special protection streams from drilling operations, is at least bigger than the 100 foot buffer in act 13). 
ü  It restored the legal incentives for 100 foot buffers from all development, including for the drillers. 
ü  It restored the ability of the DEP to increase buffer requirements for all streams through regulation under existing legislation. 

The Delaware Riverkeeper Network, myself in my role as the Delaware Riverkeeper, the seven towns that joined us in litigation (Yardley Borough, Nockamixon Township, Robinson Township, Peters Township, South Fayette Township, Mt. Pleasant Township and Cecil Township), the town officials Brian Coppola, David Ball, and Dr. M. Khan, have secured a decision that is historically protective of the environment. 

The decision we secured clearly establishes the obligation of the Pennsylvania legislature, the Governor, all state agency heads, and all local municipal officials to protect a healthy environment for present and future generations. 

The Pennsylvania Supreme Court’s December 18, 2013 decision vindicated the importance and power of Environmental Rights Amendment of the Pennsylvania Constitution; it promised all generations of Pennsylvanians that they will benefit from pure water, clean air and a healthy environment, giving them the ability to defend that right in the courts if it is violated.

So let the industry and their political cronies twist in the wind of hypocrisy – they know they passed legislation that would devastate Pennsylvania’s environment for generations to come in order to secure big profits and golden parachutes for their executives.  

We know we secured a legal and moral victory that will protect our environment for the benefit of all – those born and those yet to come.  

Thursday, January 9, 2014

PA Supreme Court Recognizes Environmental Protection as an Inviolable Right in PA – Let This Set the Stage for a Wave of Action Across the Nation.

Act 13 was, without a doubt, an incredible overreach and giveaway to the gas drilling industry.   Supportive legislators are quick to acknowledge that the industry helped them write the legislation – no wonder it so wildly supported industrial goals – displacing local zoning and providing automatic waivers for the minimal environmental protections, are among the many giveaways the law provided.

While for years the environmental community has looked to the promise of Pennsylvania’s constitution and its promise of “pure water”, “clean air” and “preservation of the natural … environment” the fulfillment of that promise has always remained unfulfilled by our legislature and the courts.  So much so that when the Delaware Riverkeeper Network included it as a cornerstone of our attack on Act 13 in our recently won legal action many in the community derided us as wasting our limited legal briefing space. 

The Pennsylvania Supreme Court’s December 18, 2013 decision vindicated the importance and power of the Environmental Rights Amendment of the Pennsylvania Constitution; it promised all generations of Pennsylvanians that they will benefit from pure water, clean air and a healthy environment, giving them the ability to defend that right in the courts if it is violated.

The power of the Supreme Court opinion should extend far beyond the issue of shale gas development and the boundaries of Pennsylvania. 
  • The decision promises present and future generations a healthy environment:
ø   "[T]he Supreme Court has done the commonwealth a great service by reinvigorating the environmental protections that are wisely enshrined in the Pennsylvania Constitution." - Philadelphia Inquirer Editorial, "Tapping Breaks on Gas Giveaways" 12/26/2013;
  • The decision obligates the government (local and state) to honor the social contract embodied in Article 1, Section 27 of the PA Constitution that promises clean air, pure water, preservation of natural, scenic, historic and esthetic values of the environment, and that commits to protect public natural resources for present and future generations.
  • The decision restores the right of local communities to better protect their local, natural and historic resources, when the state government fails to do enough.

Rather than recognize that the state Supreme Court rendered a sound, solid, protective and honorable decision worthy of the historic stature it has been given (“This may one day be seen as the most important environmental decision ever written by an American jurist”, Pittsburgh Post Gazette, Op Ed by Bruce Ledewitz, December 26, 2013) )
the Corbett Administration and the PA DEP head, Chris Abruzzo, are wasting more time, money and resources to try to revive and defend Act 13.   By filing their insulting request for reconsideration to the Court, not only are Corbett and Abruzzo wasting resources, but they are bringing shame upon their own heads defending an unconstitutional law designed only to benefit an industry seeking to make big profits on the backs of Pennsylvania’s people and environment.

The Supreme Court decision should and will inspire a new generation of environmental protection in Pennsylvania – inspiring strong legislation by newly emboldened and empowered legislators, and supporting strong litigation when industry dollars are used to drive bad legislation and bad political acts.

But it should also inspire other states, and even the federal government, to construct their own social contracts promising pure water, clean air and healthy environments for present and future generations.  As Chief Justice Castille so eloquently described, Pennsylvania’s Environmental Rights Amendment was inspired and overwhelmingly supported in the wake of, and in response to, the environmental devastation of the coal industry and others.   

 The fossil fuel industry is spreading renewed devastation today – shale gas development, bakken oil, tar sands oil – all bring with them a heavy burden of devastation, polluting our water, air, and soils, contaminating precious water supplies, clearing forests and jeopardizing the safety of our communities.  Nuclear power is killing fish by the billions and consuming valuable water.   Coal mining and its mountain top removal continue to fill and destroy natural ecosystems and harm communities.  There is plenty of justification today to inspire a nationwide, even world wide, call for Pennsylvania’s promise of environmental protection for all.

Let’s use the wisdom of the Pennsylvania Supreme Court justices to inspire protection that will span the nation and span the generations.
Article 1, Section 27 of the Pennsylvania Constitution promises:

“…a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”

Authored by Maya K. van Rossum, the Delaware Riverkeeper.

Monday, January 6, 2014

The People Prevail or “Take that, you bullies!” [1]

Deputy Director of Delaware Riverkeeper Network,
Tracy Carluccio, speaking at statehouse rally
While we are all fighting the stranglehold the oil and gas industry has on Gasland, more often than not it’s difficult to claim many advances.  But at the end of 2013 a truly historic decision was declared when the Pennsylvania Supreme Court threw out many elements of Act 13, a law crafted by the industry and their cronies in Harrisburg and signed into law by Governor Corbett in February 2012.  Act 13 preempted municipal zoning and planning of oil and gas operations, established mandatory waivers of stream setbacks contained in state law, and took away the rights of local governments to protect the public trust. 

But immediately a fight ensued.  Never mind that everything in Pennsylvania seemed to be going the gas corporations’ way, that $23 Million has been spent by the gas industry to influence Pennsylvania (PA) politicians, that Governor Tom Corbett’s election campaign has received over $1.8 M[2], and that the industry was running roughshod in a gas extraction frenzy that leaves ruined communities, destroyed natural resources and polluted water supplies in its wake.  A legal challenge was essential because and it was a violation of the Constitution and if allowed to stand the law was a death knell for Pennsylvania and its people.

Seven municipalities, Delaware Riverkeeper Network, and Dr. Mehernosh Khan, a physician practicing in southwestern PA, challenged Act 13 as unconstitutional, relying heavily on Article 1, Section 27 of the PA Constitution, the Environmental Rights Amendment.  The municipalities are:  Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley, Bucks County.

On July 26, 2012 the Commonwealth Court declared the statewide zoning provisions in Act 13 unconstitutional, null, void and unenforceable.  The Court also struck down the provision of the law that required DEP to grant waivers to the setback requirements in Pennsylvania’s Oil and Gas Act.  Delaware Riverkeeper Network and Dr. Kahn lost standing.  The Commonwealth appealed.  On October 17, 2012 the Pennsylvania Supreme Court heard argument that Pennsylvania’s Act 13 is unconstitutional, unjustly supersedes all local ordinances related to oil and gas operations, extinguishes municipal zoning of these operations, and exposes the public and the environment to pollution and degradation from these activities.  The Court deliberated for more than a year.

On December 19, 2013 the PA Supreme Court ruled that provisions of Act 13 violate the Pennsylvania Constitution.  In doing so, the Court struck down the shale gas industry’s effort to force every municipality in the state to allow gas drilling and related industrial operations in every zoning district, rejected one-size-fits-all zoning, the removal of public trust obligations of government officials to local citizens, and the waivers for stream setbacks as unconstitutional.  Chief Justice Castille authored the historic majority opinion.  Justices Todd, McCaffrey and Baer agreed on the unconstitutionality of the provisions, resulting in a 4 to 2 decision.

Justices Castille, Todd, and McCaffrey held that the provisions violate Article I, Section 27 of the Pennsylvania Constitution – the Environmental Rights Amendment.  Chief Justice Castille stated that “we agree with the citizens that, as an exercise of the police power, Sections 3215(b)(4) and (d), 3303, and 3304 are incompatible with the Commonwealth’s duty as trustee of Pennsylvania’s public natural resources.” The three Justices recognized that the Plaintiffs sought to “vindicate fundamental constitutional rights that, they say, have been compromised by a legislative determination that violates a public trust.”

            In reviewing Section 3303, the three Justices affirmatively noted that the public trust obligations imposed by Section 27 run to all levels of government in the Commonwealth, including municipalities.  As a constitutional obligation to local citizens, the Justices expressly recognized that no statute can remove such an obligation from municipalities, and likewise cannot remove the “implicitly necessary authority to carry into effect its constitutional duties.”  The Court understood that local citizens made investments in their communities based on expectations created by local ordinances, including local ordinances that sought to protect local public trust resources.  To the Court, Section 3303 effectively “commands municipalities to ignore their obligations under Article I, Section 27 and further directs municipalities to take affirmative action to undo existing protections of the environment in their localities” to the detriment of local citizens. 

In discussing Section 3304’s uniform zoning provisions, Justices Castille, Todd, and McCaffrey agreed that the provisions “sanctioned a direct and harmful degradation of the environmental quality of life in these communities and zoning districts.”  They also concluded that the Act forced some citizens to bear “heavier environmental and habitability burdens than others” in violation of Section 27’s mandate that public trust resources be managed for the benefit of all the people.  Further, the three Justices found similar constitutional infirmities in Section 3304 as they found in Section 3303, in that Section 3304 “removes local government’s necessary and reasonable authority to carry out its trustee obligations” because it “prohibit[ed] the enactment of ordinances tailored to local conditions.”

As for Section 3215(b)(4), which established mandatory waivers of stream setbacks, the three Justices found this provision equally infirm.  Based on the Commonwealth’s argument as to Section 3215(b)(4), the Justices struck the entirety of Section 3215(b).  The Justices agreed with the Commonwealth that the waivers provision in Section 3215(b)(4) could not be read independent of the rest of Section 3215(b).  In reviewing the entirety of Section 3215(b), the Justices disapprovingly noted that “Section 3215(b) appears to provide for nothing more than a set of voluntary setbacks or, as an alternative, the opportunity for a permit applicant to negotiate with the Department of Environmental Protection the terms or conditions of its oil or natural gas well permit,” finding it “remarkabl[e]” that the DEP had the burden of proving protective conditions to be necessary.  Further, because Section 3215(d) did not require the DEP to act on local concerns raised in comments to the DEP, “Section 3215 fosters decisions regarding the environment and habitability that are non-responsive to local concerns” to the detriment of public trust beneficiaries – Pennsylvania citizens.

Justice Baer concurred in finding Act 13 unconstitutional, agreeing with the Commonwealth Court’s reasoning.  Justice Baer stated that the provisions “force municipalities to enact zoning ordinances, which violate the substantive due process rights of their citizenries.”  He further noted “Pennsylvania’s extreme diversity” in municipality size and topography and that zoning ordinances must “give consideration to the character of the municipality,” among other factors, which Act 13 did not.  In recognizing what Act 13 meant for local municipalities, Justice Baer stated, “As Challengers point out, Act 13 makes it easier for Chevron to establish a drilling rig in the middle of a corn field than a church to build a small ten-pew worship space in the same field.”

In a reversal of the findings of the Commonwealth Court, the Pennsylvania Supreme Court found that Dr. Khan satisfies standing requirements. The court noted that “existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable.” Opinion at 25. In other words, provisions of Act 13 put Dr. Khan in the untenable and objectionable position of choosing between violating Act 13’s confidentiality agreement and “violating his legal and ethical obligations to treat a patient by accepted standards, or not taking a case and refusing a patient medical care.” Id. Therefore, Dr. Khan’s interests were indeed “substantial and direct…not remote,” and conferred standing. Opinion at 26. The Court remanded Dr. Kahn’s case to the Commonwealth Court for further proceedings.

Delaware Riverkeeper Maya van Rossum speaks
at Shale Gas Outrage Rally in Philadelphia
The Pennsylvania Supreme Court also reversed Commonwealth Court’s finding that the Delaware Riverkeeper Network lacked standing in this case. Specifically, the court found that DRN’s members engendered “a substantial and direct interest in the outcome of the litigation premised upon the serious risk of alteration in the physical nature of their respective political subdivisions and the components of their surrounding environment. This interest is not remote.” Opinion at 21-22. Further, the court also found that Maya van Rossum, as the Executive Director of the Delaware Riverkeeper Network, also has standing in her official capacity to represent the membership’s interests.” Opinion at 22. The ruling therefore sets important precedent for what immediate interest or harm environmental organizations and their members need to demonstrate in order to properly establish standing.

The Supreme Court ruling is looking like a turning point, a watershed moment, for Pennsylvania.  The Petitioners knew they would win if the law was still held sacred by the state’s highest Court.  But how big the win is exceeds expectations.  The Environmental Rights Amendment (ERA) now has new life and the application of that life has the potential to renew the potency of what should be the bottom line in environmental decisionmaking.  That foundation is the health of our communities and the environment that sustains us and future generations.  By recognizing the power of ERA, the Court upholds the right of citizens and reaffirms the responsibility of our elected officials to protect the public trust, to fight for people and our natural world to be the priority, not greedy corporations and their shills.

It is inspiring to read that the Court stated, ““As the citizens illustrate, development of the natural gas industry in the Commonwealth unquestionably has and will have a lasting, and undeniably detrimental, impact on the quality of these core aspects [life, health, and liberty: surface and ground water, ambient air, etc.] of Pennsylvania’s environment, which are part of the public trust.” Opinion at 117.

Additionally, the Court stated, ““By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” Opinion at 118.

These findings apply beyond Pennsylvania and support the truth we all know about Gasland.  That the highest Court in the most recently intensely drilled state in the Nation has declared gas extraction operations to be undeniably harmful to the environment and a threat to future generations and potentially the public purse, puts wind under our sails everywhere we are struggling to take back what the industry has stolen.

This blog was authored by Delaware Riverkeeper Maya van Rossum, Attorneys Jordan Yeager and Lauren Williams and Tracy Carluccio, Deputy Director of the Delaware Riverkeeper Network.